Thank you very much for inviting me to speak this
evening. I feel very honoured to do so. Professor Trakman
said I could speak on any subject. I have chosen to
speak about a subject which should be of great concern
to all Australians, a subject I care a about a lot.
I want to start with the familiar. That familiar is
Australia, a country which has provided all of us here
with a world class education. It is the “Lucky Country”,
a land of opportunity where we enjoy standards of health
care, housing and employment among the best in the world.
It is a nation which espouses the value of a fair go
and a society where we expect as of right, that we will
be treated fairly and justly according to law. All of
these conditions inform our sense of well being. They
give us a sense that our lives are worth living in a
community which confers upon us very real value, with
high expectations of the contributions we can make to
the nation. Overwhelmingly, we can be confident that
we can live the kind of lives for which we are trained
and destined, the kind of lives which our cultural heritage,
context and experience tell us we are entitled to live.
Now we might have to work hard and we may have to make
effort to yield the fruits of these offerings, but none
the less these offerings remain well within our reach.
There is one group of Australians for whom these truths
do not resonate, for whom these truths generally are
not truths at all. This group makes up 2% of the Australian
population, some 400,000 people. These are the indigenous
people of this country - the descendants of a people
who successfully inhabited this land for somewhere between
40,000 to 60,000 years, who lived deep and complex cultural
and spiritual lives, descendants of the world’s oldest
living culture and whom we should properly and proudly
call Australia’s First Peoples.
Much of what I am going to say tonight is now unfashionable.
It would be seen by some as yet another example of the
black armband view of history. Regardless of that, I
strongly believe that by and large the awful history
of black and white Australians needs to be told again
and again until it becomes immersed in the fabric of
Australian consciousness. Just as we are constantly
reminded of the heroism of ANZAC and how that heroism
has informed what is to be an Australian today, so must
the history of black and white relations be told if
we are to achieve any sort of reconciliation and if
we are to understand the present and work constructively
together to create the better future.
I am also conscious that I might be accused of categorising
indigenous people as victims, shackled by history and
unable to take responsibility for their lives as fully
contributing citizens. While I agree with Noel Pearson
that casting indigenous people as victims is disempowering,
I also think it is crucial to look squarely at the facts.
I will spare you the well known statistics and remind
you that our indigenous brothers and sisters are the
most disadvantaged people in this country, in just about
every way we might measure advantage. As a distinct
group of Australians, they have the lowest incomes,
the greatest welfare dependency, the lowest standards
of education, the worst health, the highest levels of
unemployment and underemployment. Alcoholism, drug addiction,
violence and incarceration are in various ways their
daily experience. All of these features of Aboriginal
life in this country are unacceptable and shocking by
any standards. Indigenous people tell me that there
would not be an indigenous person in this country who
would not have a family or community member who has
not been incarcerated at some time in his or her life
– mainly his. I should also remind you that the life
expectancy of Aboriginal men is around 50-56 years,
some twenty years lower than their white counterparts.
I have an Aboriginal friend in his early 50s. I recently
asked him if he is still in contact with the Aboriginal
friends of his childhood. He said they were all dead.
What does all of this mean for you here this evening?
What I want to say to you is that it must have meaning
for you on two counts – as lawyers and as citizens.
As lawyers, you should be concerned that we have not
treated and do not treat the indigenous people of this
country justly. While the nature and specifics of the
demands of justice for indigenous people will always
be contestable, let me highlight a few big picture injustices:
- Our failure as a nation to honestly, generously
and sustainably own up to and acknowledge the violence
and destruction, genocidal in tendency, which white
Australia visited upon indigenous Australian’s for
the first 150 years of European settlement. The scars
of these experiences are carried in the hearts and
psyche of all indigenous people and all indigenous
communities today. But I am wrong to call them scars,
because scars cover healing – these wounds have not
healed and they inform every aspect of poverty and
dysfunction in the lives of indigenous people and
their communities. What we need to face up to was
memorably put by Paul Keating in his speech at Redfern
Park on 10 December 1992:
“We took the traditional lands and smashed the
traditional way of life. We brought the diseases,
the alcohol. We committed the murders. We took the
children from their mothers. We practiced discrimination
and exclusion. It was our ignorance and our prejudice
and our failure to imagine these things being done
to us. With some noble exceptions, we failed to make
the most basic human response and enter into their
hearts and minds. We failed to ask ‘How would I feel
if this were done to me?’ As a consequence, we failed
to see that what we were doing degraded all of us”.
As a nation, we may have come close to this acknowledgement
with these words from our then Prime Minister. Regrettably,
this was the last we were to hear of such sentiments.
- We have denied our indigenous brothers and sisters
reparations for past wrongs and I refer here to the
stolen generations. Rather than own up to these wrongs
and stand tall to the challenge, we have engaged in
acrimonious and unedifying debate about historical
inaccuracies. Having unearthed the truth and scale
of this wrong, we have said to the victims, “Well
if this happened as you say it did, then here is our
system of justice. Take your claims to the courts.”
The few claims that have been made have been mightily
resisted by Governments. The forensic obstacles which
people face have proven to be utterly insurmountable.
Calls from organisations such as the Public Interest
Advocacy Centre for some form of reparation tribunal
have fallen on cold and deaf ears.
- Although native title is now part of the common
law and land rights have legislative recognition,
the dispossessed have been burdened by the dispossessor
with an onus of proof which in most instances can
never be met. Hal Wootten, the former Supreme Court
Justice, and first Dean of this Law School described
this unhappy state of affairs when he recently wrote:
“Even to access the minimal possibilities that
native title holds for most indigenous people, those
seeking native title have to prove that the State
has not extinguished their rights by giving their
land to someone else, as it was long able to do at
the stroke of a pen, and that notwithstanding 200
years of dispossession, the disruption of protection
and the regimentation of assimilation, they have maintained
a recognisable group entity and a continuity of the
tradition associated with land. Even if they succeed,
their rights are subordinate to every other right
created in a system that did not even acknowledge
the possibility that their rights might exist.
He goes on to say:
“It did not have to be like this. Australia is
not bound to mean spiritedly hold its indigenous people
to the limited legal rights that ingenious lawyers
can find surviving after 200 years of trampling on
them. We seem to have forgotten that it is open to
us to be generous and creative. There are plenty of
precedents for creating special laws and special tribunals
for issues that are unsuitable for the Courts.”[1]
- We have denied the First Australians pride of citizenship.
We have made every effort to deprive them of their
self-respect, and we have humiliated them. The Israeli
philosopher Avishai Margalit has said that a decent
society is one whose institutions do not humiliate.
In “The Decent Society” Margalit says:
“It is clear that the spirit of a just society
cannot tolerate systematic humiliation by its basic
institutions.
…
If humiliation means damaging people’s self respect,
then it is clear that a necessary condition for the
just society is that it should be a society that does
not humiliate its members”.[2]
You might ask how we have humiliated our fellow Australians.
Well at the level of the big picture we have done
our best to strip them of their sense of self-worth
and human value. For 200 years, the message we have
given them is that their lives in the context of their
own unique cultural and spiritual identity are not
worth living, that they represent ways of being which
at best are irrelevant to us and which at worst degrade
us. We have made it clear to them that they have no
place in the dominant society unless it is to play
by our rules.
I dare say that some would challenge me as to whether
or not we continue to humiliate. Let me give you one
recent example and that is the winding up of ATSIC.
While there is no doubt that ATSIC was a very troubled
and unsuccessful institution, its removal from the
indigenous landscape was swift and indigenous people
were by and large not consulted. True, there were
Aboriginal voices highly critical of ATSIC and some
called for its abolition. However, it was an institution
which held the promise of indigenous representation
in the capital of this nation. A major change like
this in any other sector of society would only occur
with patient discussion among stakeholders. We all
know that when there are changes, for instance, to
corporate law in Australia, these are long-heralded
and only implemented after protracted discussion and
debate with the business community. That did not happen
with ATSIC. From where I stand there appeared to be
little real engagement with indigenous Australia as
to its abolition, and little, if any discussion about
what should replace it. Instead indigenous Australia
was told after the event, that the Government would
itself select indigenous leaders with whom to discuss
what kind of structures, if any, might replace ATSIC.
Indeed the names of these people were announced today.
I know and admire many of these people and they are
well suited to the task. As a point of principle,
however, Patrick Dodson has referred to this approach
as the modern version of “breast plating”, taking
us back to the 19th Century when white Australia selected
the so-called chiefs and kings of indigenous nations
bestowing them with breast plates to indicate their
favoured status. These breast plates were conferred
in arrogant ignorance of what leadership might have
meant for these 19th Century indigenous communities.
Patrick Dodson’s point is that breast-plating is alive
and well in the 21st Century.
As lawyers we have the responsibility to do what we
can to make Australia just and decent. This means that
we have the responsibility to at least be sensitive
to the plight of indigenous Australians, responding
when and where we can to make this country a more just
society so far as they are concerned.
I remind you of what Oliver Wendell Holmes had to
say to lawyers about the nurturing of broader sensitivies:
“… happiness, I am sure from having known many
successful men, cannot be won simply be being counsel
for great corporations and having an income of $50,000.
An intellect great enough to win the prize needs other
food besides success. The remoter and more general
aspects of law are those which give it universal interest.
It is through them that you not only become a great
master in your calling, but connect your subject with
the universe and catch an echo of the infinite, a
glimpse of the unfathomable success, a hint of the
universal law.”[3]
I want to move on and in this context say something
about what it means to be an Australian today and how
that can, and should inform nation-building.
While it might be said that the plight of indigenous
Australians has slipped from the Australian political
agenda somewhat in recent times, Australia’s indigenous
people and their relationship with the dominant society
continue to confront the nation. Somewhere deep within
the spiritual dimensions of what it is to be an Australian,
there is the presence of the indigenous people of this
country. For the most part those dimensions constitute
an uncomfortable and unresolved moral dilemma. The Catholic
priest, Father Ted Kennedy put it well when he said:
“For us whites, reconciliation starts not with
guilt, but with the acknowledgment of the truth.
…
We do share the shame whether our ancestors came on
the First Fleet or we are new migrants who came on
the last plane, we all share the shame. We must all
remember that not one of these goods things which
we non-Aboriginal Australians enjoy today – benefits
which are the envy of the world, which seem to sparkle
the more in the Australian sunlight, not one of these
goods things have been attained without the wrenching
distress and the grieving, starvation and dying of
Aboriginal people in the past”.[4]
Evidence of this moral dilemma is all around us. It
is why, when Noel Pearson suggests boarding school education
for indigenous students, he attracts front page coverage
and prime time television. It is why hundreds and thousands
of people walked the bridges and streets of our cities
in the name of reconciliation. It is why the Redfern
riots of last summer so horrified the nation. It is
why we were all so emotionally overwhelmed by Cathy
Freeman’s gold medal in the 2000 Olympics. This moral
dilemma exists because, as a people, we know that we
have treated Aboriginal people unjustly, and we know
deep down in our souls that it strikes at the heart
of our nation and at the heart of what it is to be an
Australian today.
I want to say to you that we can turn all this around,
and that we can work with indigenous Australians to
create the necessary conditions for indigenous people
to prosper and rejoice within their own unique context
as indigenous Australians. In his excellent article
“Justice or appropriation? Indigenous claims and liberal
theory”, Ross Poole had this say:
“Justice to indigenous people is a project,
but not a programme. It makes demands on non-indigenous
people: to come to terms with their past; to come
to some understanding of indigenous culture and ways
of life; to provide political, legal, social and cultural
space for indigenous people to reproduce their culture;
to transfer the massive resources to indigenous people
which will be necessary to make self-determination
possible. It makes much greater demands on indigenous
people: they have the task of remaking their cultures
and their lives in the new environment that has been
imposed upon them. This challenge is inescapable and
is one which only indigenous people can undertake.
The responsibility of non indigenous people is to
make it possible”.[5]
I want to take it further than that and say that nationhood
requires that we aim to do much more than justice to
indigenous people. Nationhood requires that we move
indigenous people from the fringes of our consciousness
and to a place at the spiritual and cultural centre
of what it means to be an Australian today. This will
demand of us that we acknowledge the past, that we interpose
ourselves only when invited to do so, and, guarding
against cultural appropriation, that we celebrate with
them their unique culture and ways of being as part
of who we are, part of our culture and part of our way
of being.
Thank you.
References:
- Hal Wootten “Conflicting Imperatives: pursuing
truth in the courts” – Proof & Truth, The Humanist
As Expert, pages 36 & 37.
- Harvard University Press, 1996
- The Path of the Law, Harvard Law Review, 1897
- Aboriginal Reconciliation, St Patrick’s Church,
Church Hill, Sydney, Trinity Sunday, 29 May 1994
- Radical Philosophy 101, June 2000
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